India has been in the news recently, and not always in a good way. We have had the cases of brutal rapes of women that have shed an unflattering light on social mores and the law enforcement system that seemed to treat these as less than the horrible crimes they are. It is hoped that the uproar that these rapes generated may lead to broad reforms.
Then we had the terrible decision in late 2013 by the Supreme Court of India in the case of Suresh Kumar Kaushal v. NAZ Foundation where they overturned a landmark 2009 ruling by the Delhi High Court that the abominable section 377 of the penal code that criminalized homosexuality, a relic of British colonial rule, was unconstitutional. This was a huge setback for LGBT rights in India.
But reader Kaushik has just sent me links to a new ruling by the Supreme Court in the case of National Legal Services Authority (NLSA) v. Union Of India that bestows full legal recognition on transgender people as a third gender with all the rights and privileges of the other two genders. This is huge because in a country of over a billion people, even the small percentage of transgender people encompass a large number, of the order of two million.
You can read the ruling here and it begins in a remarkably compassionate way:
Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.
We are, in this case, concerned with the grievances of the members of Transgender Community (for short ‘TG community’) who seek a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.
After a long an exhaustive analysis of Indian and international cases and law, judge K. S. Radhakrishnan concludes:
We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community. (p.73)
His fellow judge A. J. Sikri concurred, writing an eloquent opinion that drew upon Aristotle, Immanuel Kant, and John Rawls about the nature of justice. He wrote about the enormous hardships that transgender people face in India, though his description applies in great measure to the US too.
Some of the common and reported problem that transgender most commonly suffer are: harassment by the police in public places, harassment at home, police entrapment, rape, discriminations, abuse in public places et.al. The other major problems that the transgender people face in their daily life are discrimination, lack of educational facilities, lack of medical facilities, homelessness, unemployment, depression, hormone pill abuse, tobacco and alcohol abuse, and problems related to marriage and adoption. In spite of the adoption of Universal Declaration of Human Rights (UDHR) in the year 1948, the inherent dignity, equality, respect and rights of all human beings throughout the world, the transgender are denied basic human rights. (p.98)
Sikri says that the remedy is to give them full legal rights by treating their gender on equal terms with others.
Further, there seems to be no reason why a transgender must be denied of basic human rights which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression, Right to Education and Empowerment, Right against violence, Right against Exploitation and Right against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders. Now it’s time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition that TG as third gender. (p. 100)
By recognizing TGs as third gender, this Court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is, therefore, the only just solution which ensures justice not only to TGs but also justice to the society as well. (p. 106)
The verdict was hailed in an opinion piece in the Times of India, one of the major national newspapers.
The NLSA judgment is a hugely significant and potentially transformative decision. It affirms that there is no place in the Constitution for a hierarchy of super-humans, lesser humans and non-humans. This decision is informed, coherent, and demonstrates a familiarity with the literature as well as acute attentiveness to counsel’s arguments.
It now remains to be seen whether the obvious contradictions and gaps in the Kaushal case will be remedied by the Court in a direction that ensures that homosexuals are not only accorded the same rights as citizens as transgendered persons have been accorded, but also the right to humanity.
The author says what struck me too in reading this verdict, in that it applies equally well to LGBT rights. So we may well soon see that 2013 verdict reversed. I hope so.